Badham v. U.S. Dist. Court for Northern Dist. of California

• Decision Date: 12 December 1983
• Docket Number: No. 83-7487,83-7487
• Citation: 721 F.2d 1170
• Parties: Robert E. BADHAM, Robert W. Naylor, Eric Seastrand, Aldo Silvestri, Michael W. Cobb, Frank O. Verlot, Donna S. Richardson, Peter Schrager, Jane Baker, Charles A. Meyer, Kirk Lindsey, Donald Driscoll, Roger T. Erickson, D.D.S., Petitioners, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent, and March Fong Eu, Secretary of State of the State of California, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1170

721 F.2d 1170

Robert E. BADHAM, Robert W. Naylor, Eric Seastrand, Aldo

Silvestri, Michael W. Cobb, Frank O. Verlot, Donna S.

Richardson, Peter Schrager, Jane Baker, Charles A. Meyer, Kirk Lindsey, Donald Driscoll, Roger T. Erickson, D.D.S., Petitioners, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF

CALIFORNIA, Respondent,

and

March Fong Eu, Secretary of State of the State of

California, Real Party in Interest.

No. 83-7487.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 10, 1983.

Decided Sept. 26, 1983.

Rehearing Denied Dec. 12, 1983.

James R. Parrinello, Dobbs, & Nielsen, San Francisco, Cal., for petitioners.

Robert E. Murphy, Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, Cal., Jonathan H. Steinberg, Irell & Manella, Los Angeles, Cal., Joseph Remcho, San Francisco, Cal., for respondent.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, WALLACE, and PREGERSON, Circuit Judges.

WALLACE, Circuit Judge:

Registered Republican voters in several congressional districts in the State of California (the Republicans) challenge California Assembly Bill 2X, a congressional redistricting bill, on several state and federal constitutional grounds. A statement of the facts is contained in the district court's disposition, which follows this opinion. Employing the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) (Pullman ), the three-judge district court stayed the action pending resolution of the state law issues in state court. The district court retained jurisdiction to resolve any federal claims remaining following the state court adjudication. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415-17, 84 S.Ct. 461, 464-465, 11 L.Ed.2d 440 (1964). We affirm.

I

We are confronted initially with a question concerning the basis of our jurisdiction. The Republicans have filed both a notice of appeal under 28 U.S.C. Sec. 1291 and a petition for mandamus under 28 U.S.C. Sec. 1651. Determining which statute applies may be significant because on direct appeal we review the district court's order under an "abuse of discretion" standard, C-Y Development Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir.1983) (C-Y Development ), while under mandamus jurisdiction we employ a more stringent standard of review. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., --- U.S. ----, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 763 (1983); Will v. Calvert Fire Insurance Co., 437 U.S. 655, 661, 98 S.Ct. 2552, 2556, 57 L.Ed.2d 504 (1978). Furthermore, we may not exercise mandamus jurisdiction over an action which is subject to direct appeal. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 103 S.Ct. at 933 n. 6; Helstoski v. Meanor, 442 U.S. 500, 505-08, 99 S.Ct. 2445, 2448-2449, 61 L.Ed.2d 30 (1979); Diamond v. United States District Court, 661 F.2d 1198, 1198 (9th Cir.1981).

Under some circumstances, a Pullman abstention order may be deemed a final order subject to direct appeal under 28 U.S.C. Sec. 1291. See, e.g., Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 103 S.Ct. at 933-34 (case involving Colorado River abstention); Herrington v. County of Sonoma, 706 F.2d 938, 939 (9th Cir.1983); C-Y Development, 703 F.2d at 375 (assuming jurisdiction by direct appeal). Here, however, not only has the district court retained jurisdiction to resolve the remaining federal claims, but those federal claims are substantial and constitute the essential part of the Republicans' case. The question thus arises whether an abstention order is final under these circumstances. In a recent decision, the Supreme Court touched upon but did not provide a definitive answer to this specific question. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 103 S.Ct. at 933-34 & n. 11.

We need not resolve the issue in this case, however, because jurisdiction clearly exists under one of the two statutes and we would affirm the district court's decision under either standard of review. We therefore proceed to the merits of the abstention issue.

II

To determine whether Pullman abstention is appropriate, the district court must apply a three-prong test:

(1) The complaint "touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open."

(2) "Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy."

(3) The possibly determinative issue of state law is doubtful.

C-Y Development, 703 F.2d at 377, quoting Canton v. Spokane School District No. 81, 498 F.2d 840, 845 (9th Cir.1974), quoting Pullman, 312 U.S. at 498, 61 S.Ct. at 644.

Applying this test, the district court concluded that all three requirements have been met in this case. Essentially for the reasons stated by the district court, we agree. The primary dispute between the parties is whether the second Pullman requirement was met. Abstention under this requirement is appropriate if state court adjudication will obviate the need to decide all of the federal constitutional questions or "will substantially reduce the contours of such adjudication and place it in a different posture" as a result of which "the constitutional issues will have been substantially narrowed and refined." C-Y Development, 703 F.2d at 380. We conclude that the district court's decision should not be overturned on this issue.

In addition, however, the Republicans argue that Pullman abstention is not appropriate in a voting rights case, or in the alternative, that such cases require consideration of factors beyond the three basic requirements of Pullman. They stress that in this case, the congressional district boundaries must be established no later than December 15, 1983 in order to be in time for the 1984 elections. Thus, abstention and its attendant delay may here serve to invalidate the Republicans' federal voting rights. Although we disagree that these circumstances require us to reverse the district court's order, we agree that abstention orders in cases involving voting rights require special consideration.

We reject the Republicans' contention that Pullman abstention may not be applied in voting rights cases. We have stated "that there is no per se civil rights exception to the abstention doctrine." C-Y Development, 703 F.2d at 381; accord Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir.1981) ("An alleged denial of voting rights does not, in itself, constitute a 'special circumstance' which automatically precludes federal court abstention."), cert. granted, 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647, cert. dismissed, --- U.S. ----, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982). Thus, the district court was correct in applying the three-part Pullman test to the case before it.

On the other hand, "the Supreme Court has demonstrated a reluctance to order abstention in cases involving certain civil rights claims, such as voting rights, ... racial equality, ... and first amendment rights of expression ...." C-Y Development, 703 F.2d at 381 (citing cases). Many courts have expressed concern that in some cases the delay caused by abstention may effectively deny plaintiffs their constitutional rights. See, e.g., Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967); Baggett v. Bullitt, 377 U.S. 360, 378-79, 84 S.Ct. 1316, 1326-1327, 12 L.Ed.2d 377 (1964).

The dangers posed by an abstention order are particularly evident in voting cases. The right to vote is "fundamental 'because [it is] preservative of all rights,' " Harman v. Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 1183, 14 L.Ed.2d 50 (1965), quoting Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886). "Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964). In addition, delay in such cases is particularly insidious. In a redistricting case such as this, for example, the courts' failure to act before the next election forces voters to vote in an election which may be constitutionally defective. Although a subsequent court may strike down the apportionment plan, there is no procedure for removing from office the officials elected under the defective plan. Moreover, these officials may acquire advantages of incumbency that may be difficult for their opponents to overcome in future elections held under a constitutionally valid plan. Thus, a delayed decision in such a case "strike[s] at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964).

Given these special dangers of delay, courts have been reluctant to rely solely on traditional abstention principles in voting cases. In Harman v. Forssenius, the Supreme Court upheld a district court's refusal to abstain in a case involving a state poll tax. The Court based its decision first on traditional Pullman considerations, concluding that the state statutes were clear and unambiguous and that state court construction of the statutes would not materially alter the nature of the problem. 380 U.S. at 535-36, 85 S.Ct. at 1182-1183.

The Court did not rest its decision on these grounds alone, however, and went on to state:

In addition to the clarity of the Virginia statutes, support for the District Court's refusal to stay the proceedings is found in the nature of the constitutional deprivation alleged and the probable consequences of abstaining. The District Court was faced with two class actions attacking a statutory scheme allegedly impairing the right to vote in violation of Art. I, Sec. 2, and the Fourteenth, Seventeenth and Twenty-fourth Amendments.... In appraising the motion to stay proceedings, the District Court was thus faced...